R v NGUYEN - [2022] SASCA 124

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v NGUYEN
[2022] SASCA 124
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
1 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING HEROIN
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GAMBLING ADDICTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
The respondent pleaded guilty to three counts of trafficking in a controlled drug, namely heroin, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The sentencing Judge proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) and imposed a single penalty in respect of all three offences. The sentencing Judge commenced with a starting point of five years imprisonment. This was reduced by 35 per cent on account of the respondent’s guilty pleas and further reduced by four months for time spent in custody and on home detention bail. This resulted in a head sentence of imprisonment for two years and 11 months. The respondent was a serious repeat offender pursuant to s 53(1)(a) of the Sentencing Act 2017 (SA). Accordingly, a non‑parole period of two years and four months was fixed, that being four-fifths of the head sentence.
The sentencing Judge ordered that the sentence be served on home detention bail, subject to conditions.
The Director of Public Prosecutions (SA) complains that the sentence is manifestly inadequate by reason of its length and the granting of a home detention order.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.The sentence is manifestly inadequate. To allow the sentence to remain would undermine public confidence in the administration of justice notwithstanding the public interest in ensuring that the respondent is not twice vexed.
2.The respondent is resentenced. In relation to Count 1, the Court imposes a sentence of imprisonment for four years. As to Counts 2 and 3, pursuant to s 26 of the Sentencing Act 2017 (SA), the Court imposes one penalty of imprisonment for seven years to be served concurrently with the earlier sentence. Both the head sentence and non-parole period is reduced by 35 per cent on account of the respondent’s guilty pleas to four years, six months, and 19 days with a non-parole period of three years and four months, that being approximately four-fifths of the head sentence. The sentence is further reduced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v NGUYEN

Details

AGLC: R v NGUYEN [2022] SASCA 124
Case: [2022] SASCA 124
Decision Date: 1 December 2022

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Mr Nguyen, by the District Court of New South Wales. Mr Nguyen had pleaded guilty to a charge of supplying a commercial quantity of heroin. The sentencing judge had imposed a sentence of two years and three months imprisonment, to be served by way of a home detention order. The Crown argued that this sentence was manifestly inadequate.

The Court of Criminal Appeal was required to determine whether the sentencing judge erred in imposing a home detention order for the offence of supplying a commercial quantity of heroin, and whether the sentence was so lenient as to be outside the range of a reasonable sentence. The court considered the principles governing appeals against sentence by the Crown, particularly the threshold for interference where a sentence is alleged to be manifestly inadequate.

In its reasoning, the Court of Criminal Appeal acknowledged the sentencing judge's consideration of Mr Nguyen's gambling addiction and substance abuse issues, as well as the potential hardship to his family. However, the court emphasised the seriousness of the offence of supplying a commercial quantity of heroin, noting the significant harm such drugs cause to the community. The court held that, notwithstanding the mitigating factors, a home detention order was not an appropriate sentence for this type of offence, and that the sentence imposed was manifestly inadequate.

The Court of Criminal Appeal allowed the Crown's appeal, quashed the home detention order, and resentenced Mr Nguyen to a term of imprisonment of four years and six months, with a non-parole period of two years and nine months.

Orders